[EL] Truth to power?
Jerald Lentini
jerald.lentini at gmail.com
Wed Feb 22 13:16:40 PST 2012
I think that's a tangent to the key issue here: namely, why is it presumed
that $100 million to a super PAC is any less likely to corrupt or give the
appearance of corruption than $100 million to a campaign?
As I mentioned last week, I think the problem is that the super PACs we've
seen in this election are essentially campaign organs. They claim the sole
organizational purpose of electing a specific candidate, they advertise on
behalf of that candidate, they attack that candidate's opponents, and
they're operated almost exclusively by the candidate's confidantes and
former staffers, many (if not most) of whom would reasonably be expected to
know the candidate's preferred strategy for the election. The main
difference seems to be simply that they aren't titularly headed by the
candidates themselves.
If Mr. Adelson were to give $10-100 million directly to Newt Gingrich's
official campaign organization--a group led by longtime confidantes that
exists for the sole purpose of helping Mr. Gingrich win the Republican
nomination--I don't know that anyone would argue there's no possibility
such a gift would have the appearance of corruption. Instead, he gives it
to Winning Our Future PAC--a group led by longtime confidantes that exists
for the sole stated purpose of helping Mr. Gingrich win the Republican
nomination--and we are told that's such a substantial difference as to
prevent any appearance of corruption.
I fail to see what the difference between the campaign and the
single-candidate super PAC is that makes one apparently risk-free and the
other appear dangerous enough to be legally regulable.
-JR
On Wed, Feb 22, 2012 at 3:57 PM, Frank Askin <faskin at kinoy.rutgers.edu>wrote:
> They are both trying to please Adelson in order to gain access to the
> money he has pledged to influence the outcome of the race - he has said
> that might be as much as $100 million. Would they really have the same
> position on Israel and Iran if they were not competing for Adelson's
> support? That is unclear, but there is much evidence that Gingrich
> substantially changed his position on the Middle East situation once he
> began hanging out with Adelson and seeking his backing. Romney now
> appears to be bending over backwards to demonstrate he is equally
> supportive of Adelson's policies.
>
>
>
>
> Prof. Frank Askin
> Distinguished Professor of Law and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687>>> <JBoppjr at aol.com> 2/22/2012 3:51 PM >>>
> If a candidate saying that he or she agrees with a donor's position on
> an
> issue is corruption then democracy itself is inherently corrupt. I
> know
> some think this. Do you? Jim Bopp
>
>
> In a message dated 2/22/2012 3:12:13 P.M. Eastern Standard Time,
> faskin at kinoy.rutgers.edu writes:
>
> How much more evidence of corruption (and its appearance) do we need
> than Gingrich and Romney both trying to prove to Sheldon Adelson that
> they are each more supportive of the Israeli government than the
> other
> and more prepared to bomb Iran? FRANK
>
>
>
>
> Prof. Frank Askin
> Distinguished Professor of Law and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687>>> Joe La Rue <joseph.e.larue at gmail.com> 2/22/2012
> 2:55
> PM >>>
> Actually, at this point, I think there would have to be evidence of
> corruption. The Supreme Court has ruled as a matter of law that
> independent
> expenditures do not give rise to corruption. Therefore, it seems to
> me,
> in
> the absence of proof that the Court was wrong, there can be no
> apparent
> corruption either. Thus, the question of whether there is apparent
> corruption is an invalid question in the absence of proof that
> corruption
> is possible. So I think Jim is right: if one wants to assert that
> Super
> PACs give rise to the appearance of corruption, one has to first
> demonstrate that corruption can occur by providing evidence that it
> is
> occurring.
>
>
> Joe
> ___________________
> *Joseph E. La Rue, Esq.*
> cell: 513.509.6494
> email: joseph.e.larue at gmail.com
>
>
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>
> On Wed, Feb 22, 2012 at 1:45 PM, Edward Still <still at votelaw.com>
> wrote:
>
> > Isn't the proper question whether there is "appearance of
> corruption"
> when
> > a donor gives to a Super PAC?
> >
> > Edward Still
> > Edward Still Law Firm LLC
> > 130 Wildwood Parkway, Suite 108, PMB 304
> > Birmingham AL 35209
> > 205-320-2882 (voice & fax)
> > still at votelaw.com
> > www.votelaw.com/blog
> > www.edwardstill.com
> > www.linkedin.com/in/edwardstill
> > <http://www.linkedin.com/in/edwardstill>
> >
> >
> > On Wed, Feb 22, 2012 at 12:17 PM, <JBoppjr at aol.com> wrote:
> >
> >> **
> >> What is the evidence of *any* quid-pro-quo exchange between a
> donor
> to a
> >> super PAC and a candidate? Jim Bopp
> >>
> >> In a message dated 2/22/2012 12:05:46 P.M. Eastern Standard Time,
> >> jeffhauser at gmail.com writes:
> >>
> >> Jim assumes that the set of all actual coordination/actual quid
> pro
> quos
> >> is identical to that which could be proven beyond a reasonable
> doubt
> in a
> >> criminal setting, or under some other high evidentiary bar
> setting.
> >>
> >> Once we acknowledge that not all actual coordination is knowable
> by
> third
> >> parties, including the government, this analysis falls apart.
> >>
> >> On Wed, Feb 22, 2012 at 11:59 AM, <JBoppjr at aol.com> wrote:
> >>
> >>> **
> >>> The Court has repeatedly said, since *Buckley* in 1976, including
> in *
> >>> McConnell*, that independent spending does not give rise to the
> >>> corruption concern that has justified contribution limits -- ie
> the
> danger
> >>> of a quid-pro-quo exchange. Since the spender and candidate do
> not
> discuss
> >>> the independent expenditure, or it would be coordinated, a
> quid-pro-quo
> >>> agreement is factually impossible. So "reformers" want to expand
> the
> >>> definition of corruption to include gratitude --tat the candidate
> is
> >>> grateful for the independent spending and will then change his
> positions to
> >>> benefit the independent spender. Or the candidate might give the
> spender
> >>> "access," by meeting and talking to the spender about his or her
> concerns.
> >>> So as long as the Court is not willing to expand the definition
> of
> >>> corruption to include "gratitude" or preferential "access," and
> they have
> >>> said repeatedly that they are not, then no corruption facts
> exist
> to be
> >>> proved. There was nothing new in the decision of *CU* to this
> debate,
> >>> other than to repeat again their position and to say that they
> continue to
> >>> adhere to this view.
> >>>
> >>> Of course, the real danger of corruption here is that the Court
> will
> >>> bend to the popular clammer that *CU* was wrong and should be
> changed.
> >>> This is a serious attack on the independence of the Court that
> would
> >>> undermine the Court's legitimacy if they just flip-flopped on
> this,
> as the
> >>> reformers are demanding. And since these issues have been
> debated
> ad
> >>> nauseum and decided by the Court repeatedly, why should the Court
> majority
> >>> entertain yet another re-run? They don't agree with the
> reformer's
> position
> >>> on this, because the Court majority believes that their position
> is
> >>> required by the First Amendment, as have numerous Supreme Court
> majorities
> >>> in the past 35 years. The reformers don't like it now and didn't
> like it
> >>> then. This is not a reason to replow this heavy replowed ground
> once
> >>> again. Jim
> >>>
> >>> In a message dated 2/22/2012 11:35:28 A.M. Eastern Standard
> Time,
> >>> jbirkenstock at capdale.com writes:
> >>>
> >>> Well, Barnaby, at the risk of inviting anyone to draw a weapon
> (en
> sixte
> >>> or otherwise) and flick it upward at Justice Scalia while he
> sonorously
> >>> chants "Rule 47 applies to a pretrial motion...," allow me to
> retort.
> >>> (Partially agree, actually, and partially retort.)
> >>>
> >>> We agree that Ginsberg and Breyer aren't on especially strong
> ground to
> >>> advance that claim that *corporate* IE's as such are themselves
> the
> root of
> >>> much current concern about superPACs, but I think that
> illustrates
> the
> >>> overreach of CU as much as it illustrates Ginsberg's and Breyer's
> >>> imprecision. Kennedy's opinion didn't permit video-on-demand
> distribution
> >>> of a corporate-funded 90 minute campaign ad on the basis that
> VOD
> is
> >>> basically a private communication, or that the movie as a whole
> wasn't
> >>> express advocacy, or that CU was a really engaging in a media
> function by
> >>> creating and distributing its film, or any other narrower basis
> more
> >>> appropriate to the case as litigated.
> >>>
> >>> Instead, the CU majority held - in the absence of any actual
> record
> >>> suitable to this kind of facial evaluation - that there are no
> applications
> >>> of 441b sufficient to justify the constitutionality of the
> statute.
> >>> Regardless of the potential variations in "corporate"
> expenditures
> you
> >>> address below: regardless of whether a corporation provided the
> money, or
> >>> spent it, or both; and regardless of whether any corporation in
> that chain
> >>> is a business corporation or an advocacy organization.
> >>>
> >>> And, more to my point, regardless of whether the "independence"
> of
> the
> >>> IE is of the "CU's movie about Hillary variety" or the
> "functionally
> >>> single-candidate committee singled out for direct fundraising
> help
> by the
> >>> benefitting candidate" variety. It's true that 441b equally
> prohibited all
> >>> of the above with respect to corporations, but in facially
> invalidating the
> >>> statute without a record (or even much briefing) about whether a
> connected
> >>> PAC is a "separate entity," for example, or whether "the advent
> of
> the
> >>> Internet" would somehow actually "provide shareholders and
> citizens
> with
> >>> the information needed to hold corporations and elected officials
> >>> accountable for their positions and supporters," the CU court
> didn't just
> >>> allow Citizens United to distribute its movie, it broadly
> concluded
> that
> >>> independent expenditures by anyone simply pose no risk of
> regulable
> >>> corruption. Ever, in any circumstance.
> >>>
> >>> So a complaint that Ginsberg and Breyer too quickly blur the
> >>> distinctions between the "corporateness" of particular IE's on
> the
> one hand
> >>> and the validity of anyone's concerns about whether "independent"
> >>> expenditures give rise to corruption or the appearance of
> corruption more
> >>> generally is fair enough, but I still think it's an equally fair
> complaint
> >>> against the opinion that opened the door to all of it.
> >>>
> >>> Best,
> >>> Joe
> >>>
> >>> P.S. And sorry if I got lost anywhere in that recap at the top
> of
> this
> >>> email, we Padawan learners tend to mix up the FRCP and the
> FRCrimP
> when
> >>> confronted with too much sonorous chanting.
> >>>
> >>>
> >>> ________________________________
> >>>
> >>> From: BZall at aol.com [mailto:BZall at aol.com]
> >>> Sent: Wed 2/22/2012 8:53 AM
> >>> To: Joseph Birkenstock
> >>> Cc: law-election at uci.edu
> >>> Subject: Re: [EL] Truth to power?
> >>>
> >>>
> >>> [nods] Indeed. The litigator's eternal dilemma. And in response,
> a
> >>> merciful Lady Justice, having peeped under her blindfold to see
> the
> anguish
> >>> of those proposing issue resolution not tied to "obvious" facts,
> grimaced,
> >>> raised her right hand, with her sword en sixte, and flicked it
> upward,
> >>> drawing forth what we all know today as . . . Rule 12(b)(1).
> Inculcated in
> >>> generations of DoJ padawan learners in the creche, surrounded by
> the ghosts
> >>> of Swierkiewicz and his eternal enemy Sorema N.A., sonorously
> chanting
> >>> "12(b)(1), . . . 12(b)(1) . . . 12(b)(1)," the cadaverous DoJedi
> Masters
> >>> lean in to fiercely hiss "END this!" (And I speak as one who has
> stood at
> >>> the podium as Justice Scalia (one of MY votes!) turns to his
> colleagues and
> >>> says: "he wants to be here, but I don't think he has a right to
> be
> here.")
> >>>
> >>> Still, . . . a real teachable moment here, and I'm not referring
> to
> the
> >>> also-correct issue of facial challenges requiring an explanation
> for every
> >>> constitutional use. Examine for a moment the purpose and
> >>> undoubtedly-unintended effect of the rule requiring a factual
> basis
> in the
> >>> context of the Montana concurrence. The facts in Western
> Tradition
> as laid
> >>> out relate to corporations, as does the Montana Supreme Court
> challenge to
> >>> Citizens United. Indeed, that was the constant attack on CU at
> the
> >>> beginning, a reprise of Austin's anti-distortion rationale just
> struck
> >>> down. And that is unquestionably what JBG means.
> >>>
> >>> Yet, as today's front page story in the Washington Post
> demonstrates,
> >>> the "huge money" is not coming from corporations. The corporate
> funding
> >>> "unleashed" by CU amounts to only 23% of superPAC funding. <
> >>>
>
> http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the
>
> -power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1>
> >>>
> >>>
>
> http://www.washingtonpost.com/politics/corporations-are-sending-more-contrib
>
> utions-to-super-pacs/2012/02/02/gIQAL4dYlQ_story.html
>
> >>> Most of the "huge" money is coming from individuals.
> >>>
>
> http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the
>
>
> -power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1Sh
> eldon
> Adelson says he feels so strongly he might spend $100 million.
> >>>
>
> http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon-ade
>
> lson-says-he-might-give-100m-to-newt-gingrich-or-other-republican/And,
> as has been discussed here, those individuals were free to spend
> >>> before CU.
> >>>
> >>> So let's take JBG at her words:
> >>>
> >>> Montana's experience, and experience elsewhere since this Court's
> >>> decision in Citizens United v. Federal Election Comm'n, 558 U. S.
> ___
> >>> (2010), make it exceedingly difficult to maintain that
> independent
> >>> expenditures by corporations "do not give rise to corruption or
> the
> >>> appearance of corruption." Id., at ___ (slip op., at 42). A
> petition for
> >>> certiorari will give the Court an opportunity to consider
> whether,
> in light
> >>> of the huge sums currently deployed to buy candidates'
> allegiance,
> Citizens
> >>> United should continue to hold sway.
> >>>
> >>> Lady Justice's wisdom in requiring facts to illuminate the real
> issues
> >>> presented may be a dilemma, but it is probably one that betters
> Justice.
> >>> Justices Ginsburg and Breyer believe that the "huge sums" are
> "deployed"
> >>> "by corporations" when they are actually given by individuals. I
> believe
> >>> that it is wrong to claim that CU "held" that corporations are
> people.
> >>> Whatever your position on that, two Justices have now endorsed
> the
> concept
> >>> in reverse. They are not saying that corporations are people;
> they
> are
> >>> saying that people are corporations.
> >>>
> >>>
> >>>
> >>>
> >>> Barnaby Zall
> >>> Of Counsel
> >>> Weinberg, Jacobs & Tolani, LLP
> >>> Please note our new address:
> >>> 10411 Motor City Dr., Suite 500
> >>> Bethesda, MD 20817
> >>> 301-231-6943 (direct dial)
> >>> www.wjlaw.com <http://www.wj/>
> >>> bzall at aol.com
> >>>
> >>>
> >>>
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> >>>
> >>> In a message dated 2/21/2012 6:59:51 P.M. Eastern Standard Time,
> >>> jbirkenstock at capdale.com writes:
> >>>
> >>>
> >>>
> >>> True enough Barnaby, good point. I had the impression that
> DOJ
> >>> would have much preferred the Court to similarly require a
> factual
> record
> >>> suitable to a facial challenge to 441b, once the Court
> un-stipulated that
> >>> issue in CU itself, but I also think I see the reasoning behind
> idea that
> >>> the Supreme Court isn't precluded from revisiting an issue
> "passed
> upon" by
> >>> a lower court if the Supremes feel that issue is the one that
> should
> >>> properly decide the case.
> >>>
> >>>
> >>>
> >>> But that said, I just think that state of affairs poses an
> >>> excruciating problem for government lawyers - do they have to
> develop (and
> >>> convince a district court judge to allow them to develop) a
> factual
> record
> >>> sufficient to answer every conceivable constitutional argument in
> every
> >>> case, even where the defendant/other litigant is willing to
> stipulate those
> >>> issues away? Just seems like they're damned if they do and
> damned
> if they
> >>> don't.
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>> <- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
> ->
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